Adjudication of Temporary and Seasonal Need for Herding and Production of Livestock on the Range Applications Under the H-2A Program

CourtEmployment And Training Administration,Labor Department
Citation86 FR 24368
Record Number2021-09639
Published date06 May 2021
24368
Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Proposed Rules
1
In addition, the Secretary has delegated to the
Department’s Wage and Hour Division the
responsibility under section 218(g)(2) of the INA, 8
U.S.C. 1188(g)(2), to assure employer compliance
with the terms and conditions of employment
under the H–2A program. Secretary’s Order 01–
2014 (Dec. 19, 2014).
including the short slate and bona fide
nominee rules. Do commenters believe
that these rules are necessary or
appropriate for any fund not required to
use a universal proxy card? Or does the
lack of proxy contests in open-end
funds indicate that it would be
appropriate to rescind these rules even
if we do not extend the application of
the Proposed Rules to open-end funds?
24. There are registered closed-end
funds and BDCs that, like open-end
funds, do not hold annual meetings to
elect directors because of their state of
incorporation or type of corporate
entity, or because they are not listed on
an exchange. If we were to exclude
open-end funds from the Proposed
Rules because of the lack of annual
meetings, should the exclusion apply to
registered closed-end funds and BDCs
that do not hold annual meetings?
Should such funds continue to be
subject to the short slate and bona fide
nominee rules?
25. Are there any other developments
since 2016 we should consider in our
assessment of whether the Proposed
Rules should apply to open-end funds,
closed-end funds or BDCs? What are the
economic effects of any such
developments?
We request and encourage any
interested person to submit comments
regarding the Proposed Rules, specific
issues discussed in this release or the
2016 Release, and other matters that
may have an effect on the Proposed
Rules. We request comment from the
point of view of registrants,
shareholders, directors, and other
market participants. We note that
comments are of particular assistance to
us if accompanied by supporting data
and analysis of the issues addressed in
those comments, particularly
quantitative information as to the costs
and benefits. If alternatives to the
Proposed Rules are suggested,
supporting data and analysis and
quantitative information as to the costs
and benefits of those alternatives are of
particular assistance. Commenters are
urged to be as specific as possible. All
comments received to date on the
Proposed Rules will be considered and
need not be resubmitted. If any
commenters who have already
submitted a letter wish to provide
supplemental or updated comments, we
encourage them to do so.
By the Commission.
Dated: April 16, 2021.
J. Lynn Taylor,
Assistant Secretary.
[FR Doc. 2021–08301 Filed 5–5–21; 8:45 am]
BILLING CODE 8011–01–P
DEPARTMENT OF LABOR
Employment and Training
Administration
20 CFR Part 655
[DOL Docket No. ETA–2020–0005]
RIN 1205–AB99
Adjudication of Temporary and
Seasonal Need for Herding and
Production of Livestock on the Range
Applications Under the H–2A Program
AGENCY
: Employment and Training
Administration (ETA), Labor.
ACTION
: Proposed rule; request for
comments.
SUMMARY
: The Department of Labor (the
Department) proposes to amend its
regulations regarding the adjudication of
temporary need for employers seeking
herding or production of livestock on
the range job opportunities under the
H–2A program. Consistent with a court-
approved settlement agreement, this
notice of proposed rulemaking (NPRM
or proposed rule) would rescind the
regulation that governs the period of
need for such job opportunities to
ensure the Department’s adjudication of
temporary or seasonal need is
conducted in the same manner for all
applications for temporary agricultural
labor certification.
DATES
: Interested persons are invited to
submit written comments on the
proposed rule on or before June 7, 2021.
ADDRESSES
: You may submit comments,
identified by Regulatory Information
Number (RIN) 1205–AB99, by the
following method:
Electronic Comments: Comments may
be sent via http://www.regulations.gov,
a Federal E-Government website that
allows the public to find, review, and
submit comments on documents that
agencies have published in the Federal
Register and that are open for comment.
Simply type in ‘1205–AB99’ (in quotes)
in the Comment or Submission search
box, click Go, and follow the
instructions for submitting comments.
Instructions: All submissions must
include the agency’s name and the RIN
1205–AB99. Please be advised that
comments received will become a
matter of public record and will be
posted without change to http://
www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to
read background documents or
comments, go to the Federal e-
Rulemaking Portal at http://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT
:
Brian Pasternak, Administrator, Office
of Foreign Labor Certification,
Employment and Training
Administration, Department of Labor,
200 Constitution Avenue NW, Room N–
5311, Washington, DC 20210, telephone:
(202) 693–8200 (this is not a toll-free
number). Individuals with hearing or
speech impairments may access the
telephone number above via TTY/TDD
by calling the toll-free Federal
Information Relay Service at 1 (877)
889–5627.
SUPPLEMENTARY INFORMATION
:
Table of Contents
I. Background on 20 CFR Part 655, Subpart
B
A. Statutory Framework
B. Regulatory Framework
C. The Hispanic Affairs Project Litigation
and Need for Rulemaking
II. Discussion of Proposed Revision to 20 CFR
Part 655, Subpart B
III. Administrative Information
I. Background on 20 CFR Part 655,
Subpart B
A. Statutory Framework
The H–2A nonimmigrant worker visa
program enables U.S. agricultural
employers to employ foreign workers on
a temporary basis to perform temporary
or seasonal agricultural labor or services
where the Secretary of Labor (Secretary)
certifies that (1) there are not sufficient
workers who are able, willing, and
qualified, and who will be available at
the time and place needed to perform
the labor or services involved in the
petition; and (2) the employment of the
aliens in such labor or services will not
adversely affect the wages and working
conditions of workers in the United
States similarly employed. See section
101(a)(15)(H)(ii)(a) of the Immigration
and Nationality Act (INA or the Act), as
amended by the Immigration Reform
and Control Act of 1986 (IRCA), 8 U.S.C.
1101(a)(15)(H)(ii)(a); section 218(a)(1) of
the INA, 8 U.S.C. 1188(a)(1). The
Secretary has delegated the authority to
issue temporary agricultural labor
certifications to the Assistant Secretary
for Employment and Training, who in
turn has delegated that authority to
ETA’s Office of Foreign Labor
Certification (OFLC). Secretary’s Order
06–2010 (Oct. 20, 2010).
1
Once OFLC
issues a temporary agricultural labor
certification, employers may then
VerDate Sep<11>2014 16:33 May 05, 2021 Jkt 253001 PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 E:\FR\FM\06MYP1.SGM 06MYP1
khammond on DSKJM1Z7X2PROD with PROPOSALS
24369
Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Proposed Rules
2
The Immigration and Nationality Act of 1952
created the H–2 temporary worker program. Public
Law 82–414, 66 Stat. 163. In 1986, IRCA divided
the H–2 program into separate agricultural and
nonagricultural temporary worker programs. See
Public Law 99–603, section 301, 100 Stat. 3359
(1986). The H–2A agricultural worker program
designation corresponds to the statute’s agricultural
worker classification in 8 U.S.C.
1101(a)(15)(H)(ii)(a).
3
Temporary Agricultural Employment of H–2A
Aliens in the United States, 75 FR 6884 (Feb. 12,
2010).
4
The Department is currently engaged in a
separate rulemaking that seeks to amend these
regulations as they pertain to the H–2A program.
Temporary Agricultural Employment of H–2A
Nonimmigrants in the United States, 84 FR 36168
(July 26, 2019) (2019 NPRM). The 2019 NPRM
proposed amendments to the current regulations
that focus on modernizing the H–2A program and
eliminating inefficiencies. The 2019 NPRM also
proposed to amend the regulations for enforcement
of contractual obligations for temporary foreign
agricultural workers and the Wagner-Peyser Act
regulations to provide consistency with revisions to
H–2A program regulations governing the temporary
agricultural labor certification process.
5
As the Department explained in its 2015 herder
rulemaking, Congress enacted statutes during the
early 1950s authorizing the permanent admission of
a certain number of ‘‘foreign workers skilled in
sheepherding.’’ See Temporary Agricultural
Employment of H–2A Foreign Workers in the
Herding or Production of Livestock on the Open
Range in the United States, 80 FR 20300, 20301–
20302 (Apr. 15, 2015). Congress subsequently
permitted these special laws to expire and signaled
that sheepherders should be admitted under the
existing temporary (then H–2) program. Id.; see also
Changes to Requirements Affecting H2A
Nonimmigrants, 73 FR 76891, 76906–76907 (Dec.
18, 2008).
6
The 2015 Rule followed litigation in Mendoza
v. Perez, in which the U.S. Court of Appeals for the
District of Columbia Circuit held the special
procedures pertaining to sheep, goat, and other
open range herding or production of livestock were
subject to the Administrative Procedure Act’s (APA)
notice and comment requirements. 754 F.3d 1002,
1024 (D.C. Cir. 2014); see Mendoza v. Perez, 72 F.
Supp. 3d 168, 175 (D.D.C. 2014) (remedial order
setting a rulemaking schedule).
7
The 2019 NPRM proposed clarifying and
technical revisions to certain provisions for
employment of workers in herding and production
of livestock on the range (e.g., portions of 20 CFR
655.205, 655.211, 655.220, and 655.225) that are not
the subject of this proposal. 84 FR 36168, 36220–
21. The 2019 NPRM also proposed to incorporate
into the H–2A regulations, with some
modifications, the standards and procedures
currently found in Training and Employment
Guidance Letters related to animal shearing,
commercial beekeeping, and custom combining,
and to rescind the general provision that allows for
the creation of ‘‘special procedures’’ (i.e., sub-
regulatory variances from the regulations). Id. at
36171–73.
petition the U.S. Department of
Homeland Security (DHS) to employ a
nonimmigrant worker in the United
States in the H–2A visa classification.
B. Regulatory Framework
Since 1987, the Department has
operated the H–2A temporary
agricultural labor certification program
under regulations promulgated pursuant
to the INA.
2
With limited exceptions,
including those set forth below, the
Department’s current regulations
governing the H–2A program were
published in 2010.
3
The standards and
procedures applicable to the
certification and employment of
workers under the H–2A program are
found in 20 CFR part 655, subpart B and
29 CFR part 501.
4
Historically, employers in a number
of states (primarily but not exclusively
in the western continental United
States) have used what is now the H–2A
program to bring in foreign workers to
work as sheep and goat herders.
5
Beginning in 1989, and consistent with
Congress’ historical approach, the
Department established variances from
certain H–2A regulatory requirements
and procedures through sub-regulatory
guidance to allow employers of open
range sheep and goat herders to use the
H–2A program. The Department
established similar variances or ‘‘special
procedures’’ through sub-regulatory
guidance in 2007 for employers seeking
to employ H–2A workers for open range
herding or production of livestock
positions. In 2015, the Department
incorporated these ‘‘special procedures’’
provisions for the employment of
workers in the herding and production
of livestock on the range, with some
modifications, into its H–2A regulation.
Temporary Agricultural Employment of
H–2A Foreign Workers in the Herding or
Production of Livestock on the Range in
the United States, 80 FR 62958 (Oct. 16,
2015) (2015 Rule).
6
The variances
codified in the 2015 Rule continued the
agency’s recognition of the unique
occupational characteristics of herding
positions, which involve spending
extended periods of time herding
animals across remote range lands and
being on call to protect and maintain
herds for up to 24 hours a day, 7 days
a week. These variances are codified at
§§ 655.200 through 655.235.
7
Section 101(a)(15)(H)(ii)(a) of the INA
permits only ‘‘agricultural labor or
services . . . of a temporary or seasonal
nature’’ to be performed under the H–
2A visa category. 8 U.S.C.
1101(a)(15)(H)(ii)(a). Thus, as part of the
Department’s adjudication of
applications for temporary agricultural
labor certification, the Department
assesses on a case-by-case basis whether
the employer has established a
temporary or seasonal need for the
agricultural work to be performed. See
20 CFR 655.161(a). In its initial
rulemaking on the H–2A program in
1987, the Department explained that it
would be appropriate for an employer to
apply annually for recurring job
opportunities in the same occupation
when it involved ‘‘truly ‘seasonal’
employment,’’ but acknowledged that
‘‘the longer the employer needs a
‘temporary’ worker, the more likely it
would seem that the job has in fact
become a permanent one.’’ Labor
Certification Process for the Temporary
Employment of Aliens in Agriculture
and Logging in the United States, 52 FR
20496, 20498 (June 1, 1987). The
Department’s current regulations, which
adopted DHS’s definition of ‘‘temporary
or seasonal nature,’’ specify that
employment is of a temporary nature
‘‘where the employer’s need to fill the
position with a temporary worker will,
except in extraordinary circumstances,
last no longer than 1 year,’’ and ‘‘of a
seasonal nature where it is tied to a
certain time of year by an event or
pattern, such as a short annual growing
cycle or a specific aspect of a longer
cycle, and requires labor levels far above
those necessary for ongoing operations.’’
20 CFR 655.103(d); 8 CFR
214.2(h)(5)(iv)(A); 75 FR 6884, 6890
(adopting DHS’s definition ‘‘was not
intended to create any substantive
change in how the Department
administers the program’’). DHS
regulations further provide that the
Department’s finding that employment
is of a temporary or seasonal nature is
‘‘normally sufficient’’ for the purpose of
an H–2A petition, but state that
notwithstanding this finding, DHS
adjudicators will not find employment
to be temporary or seasonal in certain
situations, such as when ‘‘substantial
evidence’’ exists that the employment is
not temporary or seasonal. 8 CFR
214.2(h)(5)(iv)(B).
Notwithstanding the regulatory
definition found in 20 CFR 655.103(d)
and 8 CFR 214.2(h)(5)(iv)(A), a rancher
seeking to employ a sheep or goat
herder under the 2015 Rule could
continue to seek a temporary
agricultural labor certification for up to
a 364-day period, as it could under the
special procedures that preceded the
rule. 80 FR 62958, 62999–63000; see 20
CFR 655.215(b)(2) (‘‘The period of need
identified on the H–2A Application for
Temporary Employment Certification
and job order for range sheep or goat
herding or production occupations must
be no more than 364 calendar days.’’).
The 2015 Rule also restricted range
livestock occupations to periods of need
lasting not more than 10 months. 80 FR
62958, 63000; see 20 CFR 655.215(b)(2)
(‘‘The period of need identified on the
H–2A Application for Temporary
Employment Certification and job order
for range herding or production of
cattle, horses, or other domestic hooved
livestock, except sheep and goats, must
be for no more than 10 months.’’). For
VerDate Sep<11>2014 16:33 May 05, 2021 Jkt 253001 PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 E:\FR\FM\06MYP1.SGM 06MYP1
khammond on DSKJM1Z7X2PROD with PROPOSALS
24370
Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Proposed Rules
8
On April 3, 2017, the district court granted two
employer associations’ motion to intervene as
defendants in the litigation. Minute Order Granting
Mountain Plains Agricultural Service and Western
Range Association’s Joint Motion to Intervene,
Hispanic Affairs Project, et al. v. Perez et al., No.
15–cv–1562 (D.D.C. Apr. 3, 2017).
9
Plaintiffs also challenged two other aspects of
the 2015 Rule: (1) Certain definitions and
requirements that limit the scope and location of
work that H–2A workers in sheep and goat herding
positions may perform, 80 FR 62958, 62963–73; and
(2) the methodology by which the Department
calculates the minimum required wage that such
workers (and any non-H–2A workers in
corresponding employment) must be offered and
paid, id. at 62986–96. The Department and DHS
prevailed on these issues. See Hispanic Affairs
Project v. Acosta, 901 F.3d 378, 391–96 (D.C. Cir.
2018), aff’g in part 263 F. Supp. 3d 160, 190–207
(D.D.C. 2017).
10
See https://www.uscis.gov/sites/default/files/
USCIS/Laws/Memoranda/2020/2-PMH2A-Seasonal
SheepGoatHerder_PolicyMemo.pdf.
the reasons discussed below, including
a recent court decision and related
settlement agreement, the Department is
now proposing to rescind
§ 655.215(b)(2) in its entirety.
C. The Hispanic Affairs Project
Litigation and Need for Rulemaking
On September 22, 2015, four
sheepherders and a nonprofit member
organization for Hispanic immigrant
workers filed a lawsuit in the U.S.
District Court for the District of
Columbia challenging aspects of the
2015 Rule. Hispanic Affairs Project v.
Perez, 206 F. Supp. 3d 348 (D.D.C.
2016).
8
As relevant to this rulemaking,
the plaintiffs challenged the
Department’s decision to allow
employers seeking temporary
agricultural labor certifications for
sheep or goat herder positions to apply
for periods of need that last up to 364
days at a time. See Hispanic Affairs
Project v. Acosta, 263 F. Supp. 3d 160,
182 (D.D.C. 2017) (citing 20 CFR
655.215(b)(2)). The plaintiffs also
challenged DHS’s alleged practice of
automatically approving sheep and goat
herder petitions for recurring periods up
to 364 days, asserting that the
Department’s regulation at
§ 655.215(b)(2) and DHS’s alleged
practice did not conform with the INA
or the Departments’ regulations, in
violation of the APA. See id.
Specifically, the plaintiffs argued
§ 655.215(b)(2) and DHS’s alleged
practice are inconsistent with 8 U.S.C.
1101(a)(15)(H)(ii)(a), which provides
that H–2A visas be only for ‘‘temporary’’
work, and conflicts with the
Departments’ regulations defining when
employment is of a ‘‘temporary or
seasonal nature.’’ See id.; compare 20
CFR 655.103(d) and 8 CFR
214.2(h)(5)(iv)(A) (employer’s ‘‘need to
fill the position with a temporary
worker will . . . last no longer than one
year’’) with 20 CFR 655.215(b)(2) (‘‘The
period of need identified on the
[application and job order] . . . must be
no more than 364 calendar days.’’). The
district court dismissed the challenge on
procedural grounds, concluding the
plaintiffs waived their claim against the
Department and did not properly or
timely raise their claim against DHS. Id.
at 185–86, 190.
9
On appeal, the U.S. Court of Appeals
for the District of Columbia Circuit (D.C.
Circuit) reversed and remanded the
district court’s decision on these claims
for a resolution on the merits. Hispanic
Affairs Project v. Acosta, 901 F.3d 378,
396–97 (D.C. Cir. 2018). The court held
the plaintiffs preserved their challenge
to the Department’s decision in the 2015
Rule to classify sheep and goat herding
as ‘‘temporary’’ employment. Id. at 385.
In dicta, the court noted the ‘‘agency has
no power under the statute—it is
actually forbidden—to include non-
temporary or non-seasonal workers in
the H–2A program.’’ Id. at 389. The
court also held the complaint
adequately raised a challenge to DHS’s
alleged practice of extending
‘‘temporary’’ H–2A petitions beyond the
regulatory definition of temporary
employment. Id. at 385, 388. Taking the
evidence submitted by the plaintiffs as
true, the court concluded the plaintiffs
had ‘‘plausibly shown that [DHS]’s de
facto policy of authorizing long-term
visas is arbitrary, capricious, and
contrary to law, in violation of the APA
and [INA] because it ‘authorizes the
creation of permanent herder jobs that
are not temporary or seasonal.’ ’’ Id. at
386 (original alterations omitted).
Following the D.C. Circuit’s decision,
the parties reached a settlement
agreement that was approved by the
district court on November 12, 2019.
Order Approving the Parties’ Settlement
Agreement, ECF No. 136, Hispanic
Affairs Project, et al. v. Perez et al., No.
15–cv–1562 (D.D.C. Nov. 12, 2019). As
part of the settlement, the Department
agreed to engage in rulemaking to
propose to rescind § 655.215(b)(2) and
DHS, through U.S. Citizenship and
Immigration Services (USCIS), agreed to
publish a policy memorandum that
provided guidance on the determination
of temporary or seasonal need for H–2A
sheep and goat herder petitions. Joint
Status Report at 1, ECF No. 135,
Hispanic Affairs Project, et al. v. Perez
et al., No. 15–cv–1562 (D.D.C. Nov. 8,
2019) (noting ‘‘Intervenor Defendants do
not object to the Settlement
Agreement’’). On November 14, 2019,
USCIS issued a draft of the
memorandum for public comment. After
a 30-day public comment period, USCIS
published a final memorandum on
February 28, 2020, which became
effective on June 1, 2020. See USCIS,
Policy Memorandum: Updated
Guidance on Temporary or Seasonal
Need for H–2A Petitions Seeking
Workers for Range Sheep and/or Goat
Herding or Production (Feb. 28, 2020)
(USCIS Policy Memorandum).
10
The Department’s proposed rescission
of § 655.215(b)(2) would eliminate that
provision’s presumptive period of need
for employment involving range sheep
or goat herding and absolute restriction
on the period of need for employment
involving other range livestock
activities. The 2015 Rule suggested that
the unique nature and history of herding
work permitted a variance, on an
occupational basis, from the standard
H–2A requirements governing the
adjudication of an employer’s temporary
need. As such, § 655.215(b)(2) permits
certification of a specific period of time
without requiring the Department to
assess the true nature of the labor or
services to be provided by the H–2A
nonimmigrant. The Department,
however, is now proposing to rescind
§ 655.215(b)(2) so that all employers
applying for temporary agricultural
labor certifications must individually
demonstrate their need for the
agricultural labor or services to be
performed is temporary or seasonal in
nature, regardless of occupation. The
Department believes this proposed
rescission of § 655.215(b)(2) is not only
consistent with the D.C. Circuit’s
decision in Hispanic Affairs Project and
the guidance issued by USCIS but also
better complies with the requirements of
the INA implemented in the
Departments’ regulations that define
when employment is of a ‘‘temporary or
seasonal nature.’’ 8 U.S.C.
1101(a)(15)(H)(ii)(A) (defining an H–2A
nonimmigrant as an alien coming to
perform services of a temporary or
seasonal nature); 20 CFR 655.103(d); 75
FR 6884, 6890 (adopting DHS’s
definition of ‘‘temporary or seasonal
nature’’ set forth in 8 CFR
214.2(h)(5)(iv)(A)).
II. Discussion of Proposed Revision to
20 CFR Part 655, Subpart B
The Department proposes to rescind
§ 655.215(b)(2) so that the temporary or
seasonal need of an employer seeking to
fill a herding or production of livestock
on the range position would be
adjudicated according to the
requirement in § 655.103(d) that governs
the adjudication of employment of a
temporary or seasonal nature for all
VerDate Sep<11>2014 16:33 May 05, 2021 Jkt 253001 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 E:\FR\FM\06MYP1.SGM 06MYP1
khammond on DSKJM1Z7X2PROD with PROPOSALS
24371
Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Proposed Rules
other H–2A applications. See 20 CFR
655.200(a) (noting that employers whose
job opportunities meet the qualifying
criteria under §§ 655.200–655.235 must
fully comply with all the requirements
of §§ 655.100–655.185 unless otherwise
specified in §§ 655.200–655.235).
In particular, the Department would
examine—on a case-by-case basis and
taking into consideration the totality of
the facts presented—whether an
employer’s need to fill a herding or
production of livestock on the range
position is of a temporary or seasonal
nature, as those terms are defined in the
Department’s and DHS’s regulations.
See 20 CFR 655.103(d); 8 CFR
214.2(h)(5)(iv)(A). Section 655.103(d)
states that employment ‘‘is of a
temporary nature where the employer’s
need to fill the position with a
temporary worker will, except in
extraordinary circumstances, last no
longer than 1 year.’’ The same section
states ‘‘employment is of a seasonal
nature where it is tied to a certain time
of year by an event or pattern, such as
a short annual growing cycle or a
specific aspect of a longer cycle, and
requires labor levels far above those
necessary for ongoing operations.’’ This
proposal does not alter the regulatory
definition and standards under which
the Department adjudicates temporary
or seasonal need for all other H–2A job
opportunities under § 655.103(d).
Although recurring year-round
activities cannot be classified as
temporary, see 75 FR 6884, 6891, the
Department recognizes that some herder
employers may be able to establish a
need to fill positions on a recurring
annual basis consistent with the
definition of employment of a seasonal
nature in § 655.103(d). See 80 FR 62958,
62999–63000 (2015 Rule describing
comments that delineated seasonal
aspects of herder work); 52 FR 20496,
20498 (acknowledging it is appropriate
to apply annually for truly ‘‘seasonal’’
employment); see also USCIS Policy
Memorandum at 3 n.3 (explaining that
an employer’s need for workers that
recurs annually at a given time of year
does not mean its need is permanent in
nature as employment of a seasonal
nature is defined as being tied to a
certain time of year). The Department
also acknowledges that some employers
may have a ‘‘temporary’’ need to fill
herding and range livestock job
opportunities, which is permissible
provided they can show the nature of
their need is temporary under
§ 655.103(d). See Temporary Workers
Under § 301 of the Immigration Reform
and Control Act, 11 Op. O.L.C. 39, 40
& n.4 (1987) (noting ‘‘ ‘temporary’ means
something other than seasonal’’ and
explaining employers may fill
‘‘permanent jobs that an employer needs
to fill on a temporary basis—for
example, because the regular American
employee has fallen ill or extra hands
are needed during a busy period’’); 11
Op. O.L.C. at 42 (‘‘The nature of the job
itself is irrelevant. What is relevant is
whether the employer’s need is truly
temporary.’’).
The proposed rule aligns the
Department’s adjudication of the
temporary or seasonal need of herder
applications with corresponding
changes DHS has implemented in the
USCIS Policy Memorandum. The
memorandum explains, for example,
that USCIS will adjudicate H–2A sheep
and goat herder petitions filed on or
after June 1, 2020, on a case-by-case
basis, taking into consideration the
totality of the facts presented, and in the
same manner as all other H–2A
petitions. USCIS Policy Memorandum at
1, 9. Under this memorandum, past
periods of need approved by USCIS
prior to June 1, 2020, will be one
element considered when determining
whether an H–2A petition demonstrates
a true temporary or seasonal need. Id. at
9. The Department requests comments
on all issues related to this proposed
rule, including economic or other
regulatory impacts of this rule on the
public. As noted above, on July 26,
2019, the Department issued a separate
notice of proposed rulemaking that
proposed to amend the regulations
regarding the certification of temporary
employment for nonimmigrant workers
employed in temporary or seasonal
agricultural employment and the
enforcement of the contractual
obligations applicable to employers of
such nonimmigrant workers. 84 FR
36168. In the 2019 NPRM, the
Department sought public comment on
the possibility of moving the
adjudication of an employer’s temporary
or seasonal need exclusively to DHS or
exclusively to DOL. Id. at 36178. The
2019 NPRM also proposed other
amendments to the Department’s
regulations governing the H–2A
program at 20 CFR part 655, subpart B.
Because the comment period for that
rulemaking closed on September 24,
2019, the change proposed here—
rescission of § 655.215(b)(2)—does not
affect the request for comments in that
NPRM. The Department expects to
publish a separate final rule for the 2019
NPRM, responding to public comment
on the proposals contained therein. The
Department does not anticipate the
rulemaking associated with the 2019
NPRM will affect the change proposed
here and comments on the proposals
contained in that NPRM are outside the
scope of this limited rulemaking. To the
extent a final rule associated with the
2019 NPRM substantively affects this
rulemaking, the Department will
consider, as appropriate, extending or
reopening the public comment period
for this proposal.
III. Administrative Information
A. Executive Order 12866, Regulatory
Planning and Review; and Executive
Order 13563, Improved Regulation and
Regulatory Review
Under E.O. 12866, the Office of
Management and Budget (OMB)’s Office
of Information and Regulatory Affairs
determines whether a regulatory action
is significant and therefore, subject to
the requirements of the E.O. and OMB
review. Section 3(f) of E.O. 12866
defines a ‘‘significant regulatory action’’
as an action that is likely to result in a
rule that (1) has an annual effect on the
economy of $100 million or more, or
adversely affects in a material way a
sector of the economy, productivity,
competition, jobs, the environment,
public health or safety, or state, local, or
tribal governments or communities (also
referred to as economically significant);
(2) creates serious inconsistency or
otherwise interferes with an action
taken or planned by another agency; (3)
materially alters the budgetary impacts
of entitlement grants, user fees, or loan
programs, or the rights and obligations
of recipients thereof; or (4) raises novel
legal or policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in the E.O. This
proposed rule is a significant, but not
economically significant, regulatory
action under Section 3(f) of E.O. 12866.
The Department has prepared a
Regulatory Impact Analysis (RIA) in
connection with this proposed rule, as
required under section 6(a)(3) of E.O.
12866.
E.O. 13563 directs agencies to propose
or adopt a regulation only upon a
reasoned determination that its benefits
justify its costs; the regulation is tailored
to impose the least burden on society,
consistent with achieving the regulatory
objectives; and in choosing among
alternative regulatory approaches, the
agency has selected those approaches
that maximize net benefits. E.O. 13563
recognizes that some benefits are
difficult to quantify and provides that,
where appropriate and permitted by
law, agencies may consider and discuss
qualitatively values that are difficult or
impossible to quantify, including
equity, human dignity, fairness, and
distributive impacts.
VerDate Sep<11>2014 16:33 May 05, 2021 Jkt 253001 PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 E:\FR\FM\06MYP1.SGM 06MYP1
khammond on DSKJM1Z7X2PROD with PROPOSALS
24372
Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Proposed Rules
11
This includes range herding or production of
cattle, horses, or other domestic hooved livestock
except sheep and goats.
12
For the purpose of this analysis, employers
engaged in non-sheep and/or goat herding activities
with a minimum period of need of 300 days and
a maximum period of need of 308 days were used
to make the Department’s transfer estimates.
13
The Department’s records indicate that the
majority of employers engaged in sheep and/or goat
herding occupations would likely reduce their
requested period of need to 10 months or less. The
Department used 300 days to represent a period of
10 months.
Overview of This Rule
The Department has determined that
this proposed rule is necessary as it
would clarify the Department’s
adjudication of temporary or seasonal
need for herding and range livestock
applications for temporary agricultural
labor certification under the H–2A
program, and would align that
adjudication with the requirements of
the INA. The proposed rule would also
standardize the Department’s
adjudication of temporary need under
the H–2A program. The Department’s
definition of ‘‘temporary or seasonal
nature’’ for the H–2A program, with the
exception of its current definition of
‘‘temporary’’ for herding and range
livestock occupations, is consistent with
the Department of Homeland Security’s
definition specifying that employment
is of a temporary nature ‘‘where the
employer’s need to fill the position with
a temporary worker will, except in
extraordinary circumstances, last no
longer than 1 year,’’ and ‘‘of a seasonal
nature where it is tied to a certain time
of year by an event or pattern, such as
a short annual growing cycle or a
specific aspect of a longer cycle, and
requires labor levels far above those
necessary for ongoing operations.’’ 20
CFR 655.103(d); 8 CFR
214.2(h)(5)(iv)(A).
Notwithstanding the regulatory
definition found in 20 CFR 655.103(d)
and 8 CFR 214.2(h)(5)(iv)(A), the 2015
Rule allowed employers of sheep and
goat herders to apply for a temporary
agricultural labor certification for a
period of up to 364 days. Conversely,
the same rule limited employers of
range livestock occupations to a
temporary agricultural labor
certification with a period of need not
to exceed 10 months. As discussed
above, an appellate court held that
plaintiffs preserved their challenge to
the Department’s decision in the 2015
Rule to classify sheep and goat herding
as ‘‘temporary’’ employment. The court
additionally held the complaint
adequately raised a challenge to DHS’s
alleged practice of extending
‘‘temporary’’ H–2A petitions beyond the
regulatory definition of temporary
employment. Taking the evidence
submitted by the plaintiffs as true, the
court concluded the plaintiffs had
plausibly shown DHS’s alleged practice
of automatically extending H–2A
petitions would convert job
opportunities that should be temporary
or seasonal in nature into permanent
positions, which is inconsistent with
Section 101(a)(15)(H)(ii)(a) of the INA.
The parties subsequently reached a
settlement agreement in which the
Department agreed to engage in
rulemaking to propose to rescind
§ 655.215(b)(2) and DHS, through
USCIS, agreed to publish a policy
memorandum that provided guidance
on the determination of temporary or
seasonal need for H–2A sheep and goat
herder petitions.
In this proposed rule, the Department
proposes to rescind § 655.215(b)(2),
which would eliminate that provision’s
presumptive period of need for
employment involving range herding
and absolute restriction on the period of
need for employment involving range
livestock activities. Instead, all
employers applying for H–2A temporary
agricultural labor certifications under
the proposed rule must individually
demonstrate that their need for workers
is temporary or seasonal, regardless of
occupation.
Economic Impact
The Department estimates that the
proposed rule, if finalized, would result
in costs to employers associated with
their familiarization with the rule. The
cost of the proposed rule is associated
with rule familiarization requirements
for all herding and range livestock
employers utilizing the H–2A program.
In addition to the rule familiarization
cost, the Department believes that
employers may incur other costs from
the implementation of the proposed rule
attributed to changes in business
operations, transportation, staffing
turnover, and training requirements. As
explained above, although recurring
year-round activities cannot be
classified as temporary, the Department
recognizes that there may be seasonal
aspects of herder work for which
employers may still establish a need to
fill positions on a recurring annual basis
consistent with the definition of
employment of a ‘‘seasonal’’ nature in
§ 655.103(d) and that some herder
employers may also still present a need
that is truly ‘‘temporary’’ under
§ 655.103(d) in certain circumstances.
The Department qualitatively discusses
the potential costs to employers
incurred by the implementation of this
rule but does not quantify them due to
a lack of available data and the wide
spectrum of possible responses by
employers that cannot be predicted with
specificity. The Department seeks
public comment on how these
employers may be impacted by the
proposed change in regulation. Transfer
payments under the proposed rule, if
finalized, would result from eliminating
the absolute restriction on the period of
need for employment involving other
range livestock activities and the
presumptive period of need for
employment involving range sheep or
goat herding. In particular, some
employers engaged in non-sheep and/or
goat herding activities
11
could
potentially extend their period of need
beyond 10 months, provided they can
show the nature of their need is
temporary.
12
In addition, sheep and/or
goat herding employers whose need is
temporary or seasonal in nature and
whose period of need currently exceeds
10 months would be expected to reduce
their period of need to 10 months or
less.
13
See the costs and transfer
payments subsections below for a
detailed explanation.
As shown in Exhibit 1, the
Department estimates the changes
proposed in this rule would result in a
quantified annualized cost of $3,144 at
a discount rate of 7 percent and $2,588
at a discount rate of 3 percent, as well
as unquantified costs associated with
changes in business operations,
transportation, staffing turnover, and
training requirements. Additionally, the
proposed rule, if finalized, is expected
to result in transfers for all herding and
range livestock employers. Some
employers engaged in non-sheep and/or
goat herding activities would incur a
transfer from employers to employees
due to rescinding the restriction on the
period of need for employment
involving range livestock activities. The
Department estimates that the proposed
rule would result in annualized
transfers of $95,556 at a discount rate of
7 percent and $91,983 at a discount rate
of 3 percent for these employers.
Furthermore, employers engaged in
sheep and/or goat herding activities
would experience a transfer from
employees to employers due to a
reduction in the allowed period of need
for the majority of the aforementioned
employers. The Department estimates
that the proposed rule would result in
annualized transfers of $8.42 million at
a discount rate of 7 percent and $8.11
million at a discount rate of 3 percent
for these employers.
VerDate Sep<11>2014 16:33 May 05, 2021 Jkt 253001 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 E:\FR\FM\06MYP1.SGM 06MYP1
khammond on DSKJM1Z7X2PROD with PROPOSALS
24373
Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Proposed Rules
14
Median hourly wage for Human Resources
Specialists were obtained from the Bureau of Labor
Statistics Occupational Employment Statistics
Survey, May 2019, https://www.bls.gov/oes/current/
oes131071.htm.
15
The benefits-earnings ratio is derived from the
Bureau of Labor Statistics’ Employer Costs for
Employee Compensation data using variables
CMU1020000000000D and CMU1030000000000D.
16
$29.77 + $29.77(0.46) + $29.77(0.17) = $48.53.
17
The Department’s estimate of 910 unique
employers is based on H–2A certification data from
Fiscal Years (FYs) 2017, 2018, and 2019. The
Department identified the average number of
unique applicants engaged in sheep and/or goat
herding activities across FYs 2017, 2018, and 2019
(744). This was then added to the average number
of unique applicants engaged in non-goat/sheep
and/or goat herding activities across the same time
period (166). 744 + 166 = 910.
E
XHIBIT
1—E
STIMATED
C
OSTS AND
T
RANSFER
P
AYMENTS OF THE
P
ROPOSED
R
ULE
Costs
Transfer payments
from employers of
non-sheep and/or
goat herding
Transfer payments
to employers of
sheep and/or
goat herding
Undiscounted 10-Year Total .................................................................................... $22,079 $893,043 $78,731,848
10-Year Total with a Discount Rate of 3% .............................................................. 22,079 784,637 69,174,659
10-Year Total with a Discount Rate of 7% .............................................................. 22,079 671,143 59,168,812
Annualized at a Discount Rate of 3% ..................................................................... 2,588 91,983 8,109,380
Annualized at a Discount Rate of 7% ..................................................................... 3,144 95,556 8,424,308
The Department was unable to
quantify some costs, cost savings, and
benefits of the proposed rule. The
Department, however, invites comments
regarding the assumptions, data sources,
and methodologies used to estimate the
costs and transfer payments from this
proposed rule.
i. Costs
a. Rule Familiarization Costs
Should the proposed rule take effect,
herding and range livestock employers
would need to familiarize themselves
with the new regulations; consequently,
this will impose a one-time cost in the
first year. The Department’s analysis
assumes that the changes introduced by
the rule would be reviewed by Human
Resources Specialists (SOC 13–1071).
The median hourly wage for these
workers is $29.77 per hour.
14
In
addition, the Department assumes that
benefits are paid at a rate of 46
percent
15
and overhead costs are paid at
a rate of 17 percent of the base wage,
resulting in a fully-loaded hourly wage
of $48.53.
16
This hourly wage was
multiplied by the estimated number of
herding and range livestock employers
(910)
17
and by the estimated amount of
time required to review the rule (.5
hours). This calculation results in a one-
time cost of $22,079 in the first year
after the proposed rule takes effect. The
annualized cost over the 10-year period
is $2,588 and $3,144 at discount rates of
3 and 7 percent, respectively.
b. Other Costs
The Department assumes some
employers will experience increased
costs associated with changes in
business operations, transportation,
staffing turnover, and training
requirements under this proposed rule.
In accordance with the Department’s
current regulation, employers of sheep
and goat herders are permitted to apply
for a temporary agricultural labor
certification for a period of up to 364
days. Under the proposed rule if
finalized, sheep and goat herding
employers whose need is temporary or
seasonal in nature and whose period of
need currently exceeds 10 months
would be expected to reduce their
period of need to 10 months or less. The
Department notes that, in instances
where employers have recurring year-
round labor needs that are actually
permanent, rather than temporary or
seasonal in nature, the Department
expects some employers might utilize
the employment-based immigrant
petition process to hire foreign workers,
which includes options for skilled
workers, professionals, and other
workers under 8 U.S.C. 1153(b)(3). The
Department seeks comment on how
employers might adjust their business
models to accommodate the reduction
in the permitted length of employment,
and what effect this might have on costs
of operations. Although the Department
does not anticipate the proposed rule
will have a significant adverse effect as
employers must already adjust to DHS’s
guidelines, the Department
acknowledges that some employers of
sheep and goat herders will need to
replenish their labor supply by hiring
additional U.S. workers to account for
the reduced period of need, or
extending the work schedule for U.S.
workers that they employ if they are
available. This may lead to increased
costs due to staffing turnovers, the need
to train new employees, overtime
incurred due to increased work hours,
as well as potential changes to their
business practices. The Department
does not have data available to assess
how the universe of sheep and goat
herding employers may be impacted by
this change and seeks public comment
on how these employers may be
impacted by the proposed rule.
Transfers
The first category of transfers
associated with this proposed rule
would be an employer to employee
transfer incurred due to a potential
increase in the maximum period of need
from 10 months up to 1 year, or longer
in extraordinary circumstances, for a
small number of employers engaged in
non-sheep and/or goat herding who can
demonstrate their need is temporary.
Exhibit 2 presents the distribution of
the period of need on approved
applications filed by unique employers
of non-sheep and/or goat herders during
FYs 2017, 2018, and 2019.
E
XHIBIT
2—D
ISTRIBUTION OF
P
ERIOD OF
N
EED FOR
U
NIQUE
C
ERTIFIED
E
MPLOYERS OF
N
ON
-S
HEEP
/G
OAT
H
ERDING BY
Y
EAR
[FY 17–19]
Period of need
(days)
Year
2017 2018 2019
0–70 ............................................................................................................................................. 5 5 10
VerDate Sep<11>2014 16:33 May 05, 2021 Jkt 253001 PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 E:\FR\FM\06MYP1.SGM 06MYP1
khammond on DSKJM1Z7X2PROD with PROPOSALS
24374
Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Proposed Rules
18
Based on FYs 2017, 2018, and 2019
performance data obtained from OFLC, the
Department estimates that the number of non-sheep
and/or goat herding employers is unlikely to
increase over the rule’s 10-year time forecast.
19
The Department assumes a small percentage of
the unique employers who were identified to have
a period of need between 300 and 308 days will
apply to extend their period of temporary need
beyond a 10-month period up to 1 year, or longer
in extraordinary circumstances.
20
The Department’s analysis of employers of
sheep and goat herders represents the transfer from
employer to employee. The Department assumes
that in some instances that employers will seek to
replace H–2A employees who have met the period
of need threshold with U.S. employees, which
would constitute a transfer between H–2A
employees and U.S. employees. This potential
transfer could not be evaluated due to data
limitations.
21
Based on FYs 2017, 2018, and 2019
performance data obtained from OFLC.
E
XHIBIT
2—D
ISTRIBUTION OF
P
ERIOD OF
N
EED FOR
U
NIQUE
C
ERTIFIED
E
MPLOYERS OF
N
ON
-S
HEEP
/G
OAT
H
ERDING BY
Y
EAR
—Continued
[FY 17–19]
Period of need
(days)
Year
2017 2018 2019
71–140 ......................................................................................................................................... 15 16 17
141–210 ....................................................................................................................................... 10 10 7
210–299 ....................................................................................................................................... 27 47 48
300–308 ....................................................................................................................................... 72 103 107
>308 ............................................................................................................................................. 0 0 0
Number of Unique Employers ..................................................................................................... 129 181 189
Average Period of Need ....................................................................................................... 254 260 257
Transfer payments were calculated by
identifying unique employers engaged
in non-sheep and/or goat herding from
FYs 2017, 2018, and 2019.
18
The
Department then identified employers
within this group of unique employers
whose applications contained periods of
need between 300 and 308 days. The
Department identified this subset
because some employers whose
applications contained periods of need
that fall within this range are likely to
extend their period of need up to a year,
or longer in extraordinary
circumstances, if they can demonstrate
their need is temporary in nature (i.e.,
their need is not for recurring year-
round activities). The Department
expects that an infrequent number of
employers of non-sheep and/or goat
herders would extend their period of
need beyond 10 months. For this
analysis, the Department conservatively
assumes that no more than 10 percent
of the unique employers who were
identified to have a period of need
between 300 and 308 days would apply,
and be approved by OFLC, to extend
their period of temporary need beyond
a 10-month period.
19
The Department
invites comments regarding the
assumptions on the percentage of
unique employers affected. Based on
OFLC’s performance data, the
Department estimated the impact of
extending the period of need by
multiplying the number of workers
certified for each of the unique non-
sheep and/or goat herding employers by
the basic rate of pay offered to these
workers each year. The figures for each
year were then multiplied by 2 in order
to estimate the impact from an
additional two months of need, which
yields an annualized transfer of $95,556
at a discount rate of 7 percent and
$91,983 at a discount rate of 3 percent.
The second category of transfers
associated with this proposed rule
would be an employee to employer
transfer incurred due to potential
reductions in sheep and/or goat herding
employers’ period of need from a
maximum of 364 days to 10 months or
less for annually recurring
applications.
20
Exhibit 3 presents the distribution of
the period of need on approved
applications filed by unique employers
of sheep and/or goat herders during FYs
2017, 2018, and 2019.
E
XHIBIT
3—D
ISTRIBUTION OF
P
ERIOD OF
N
EED FOR
U
NIQUE
C
ERTIFIED
E
MPLOYERS OF
S
HEEP
/G
OAT
H
ERDING BY
Y
EAR
[FY 17–19]
Period of need
(days)
Year
2017 2018 2019
0–70 ............................................................................................................................................. 0 2 3
71–140 ......................................................................................................................................... 1 4 9
141–210 ....................................................................................................................................... 6 5 3
210–299 ....................................................................................................................................... 4 7 7
>299 ............................................................................................................................................. 743 673 761
Number of Unique Employers ..................................................................................................... 754 691 783
Average Period of Need ....................................................................................................... 360 357 356
Transfer payments were calculated by
identifying unique employers engaged
in sheep and/or goat herding from FYs
2017, 2018, and 2019.
21
The Department
identified employers within this group
of unique employers whose applications
contained a period of need of 300 days
or more. Based on OFLC’s performance
data, the Department estimated the
impact of reducing the period of
eligibility by multiplying the number of
workers certified for each of the unique
sheep and/or goat herding employers by
the basic rate of pay offered to these
workers each year. The figures for each
VerDate Sep<11>2014 16:33 May 05, 2021 Jkt 253001 PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 E:\FR\FM\06MYP1.SGM 06MYP1
khammond on DSKJM1Z7X2PROD with PROPOSALS
24375
Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Proposed Rules
year were then multiplied by the
number of days requested for the period
of need of 300 days or more in order to
estimate the impact from reducing the
period of need to 10 months or less,
which yields an annualized transfer of
$8,424,308 at a discount rate of 7
percent and $8,109,380 at a discount
rate of 3 percent.
ii. Benefits
By rescinding 20 CFR 655.215(b)(2),
the Department standardizes the
adjudication of temporary need under
the H–2A program and aligns the
Department’s adjudication of the
temporary or seasonal need of herder
applications with corresponding
changes DHS has implemented in the
USCIS Policy Memorandum.
Furthermore, the proposed rescission of
§ 655.215(b)(2) better complies with
pertinent provisions of the INA and the
Departments’ applicable implementing
regulations that define when
employment is of a ‘‘temporary or
seasonal nature.’’ Therefore, this
proposed rule aims to help ensure the
employment of H–2A workers in
herding and range livestock operations
does not adversely affect the wages and
working conditions of workers in the
United States similarly employed.
B. Regulatory Flexibility Analysis and
Small Business Regulatory Enforcement
Fairness Act and Executive Order
13272: Proper Consideration of Small
Entities in Agency Rulemaking
The Regulatory Flexibility Act of 1980
(RFA), 5 U.S.C. 601 et seq., as amended
by the Small Business Regulatory
Enforcement Fairness Act of 1996,
Public Law 104–121 (March 29, 1996),
requires Federal agencies engaged in
rulemaking to consider the impact of
their proposals on small entities,
consider alternatives to minimize that
impact, and solicit public comment on
their analyses. The RFA requires the
assessment of the impact of a regulation
on a wide range of small entities,
including small businesses, not-for-
profit organizations, and small
governmental jurisdictions. Agencies
must perform a review to determine
whether a proposed or final rule would
have a significant economic impact on
a substantial number of small entities. 5
U.S.C. 603, 604. If the determination is
that it would, the agency must prepare
a regulatory flexibility analysis as
described in the RFA. Id.
However, if an agency determines that
a proposed or final rule is not expected
to have a significant economic impact
on a substantial number of small
entities, the RFA provides that the head
of the agency may so certify and a
regulatory flexibility analysis is not
required. See 5 U.S.C. 605. The
certification must include a statement
providing the factual basis for this
determination, and the reasoning should
be clear.
The Department does not expect that
this NPRM will have a significant
economic impact on a substantial
number of small entities. However, the
Department is publishing this Initial
Regulatory Flexibility Analysis (IRFA)
to invite public comment on all aspects
of this IRFA, including the estimates
related to the number of small entities
affected by the NPRM and expected
costs. The Department also invites
public comment on whether viable
alternatives exist that would reduce the
burden on small entities while
remaining consistent with statutory
requirements and the objectives of the
NPRM.
1. Why the Department Is Considering
Action
The Department has determined that
this proposed rule is necessary as it
would clarify the Department’s
adjudication of temporary or seasonal
need for herding and range livestock
applications for temporary agricultural
labor certification under the H–2A
program, and would align that
adjudication with the requirements of
the INA. The proposed rule would also
standardize the Department’s
adjudication of temporary need under
the H–2A program. The Department’s
definition of ‘‘temporary or seasonal
nature’’ for the H–2A program, with the
exception of its current definition of
‘‘temporary’’ for herding and range
livestock occupations, is consistent with
the Department of Homeland Security’s
definition specifying that employment
is of a temporary nature ‘‘where the
employer’s need to fill the position with
a temporary worker will, except in
extraordinary circumstances, last no
longer than 1 year,’’ and ‘‘of a seasonal
nature where it is tied to a certain time
of year by an event or pattern, such as
a short annual growing cycle or a
specific aspect of a longer cycle, and
requires labor levels far above those
necessary for ongoing operations.’’ 20
CFR 655.103(d); 8 CFR
214.2(h)(5)(iv)(A).
2. Objectives of and Legal Basis for the
NPRM
The Department’s proposed rescission
of § 655.215(b)(2) would eliminate that
provision’s presumptive period of need
for employment involving range sheep
or goat herding and absolute restriction
on the period of need for employment
involving other range livestock
activities. The 2015 Rule suggested that
the unique nature and history of herding
work permitted a variance, on an
occupational basis, from the standard
H–2A requirements governing the
adjudication of an employer’s temporary
need. As such, § 655.215(b)(2) permits
certification of a specific period of time
without requiring the Department to
assess the true nature of the labor or
services to be provided by the H–2A
nonimmigrant. The Department,
however, is now proposing to rescind
§ 655.215(b)(2) so that all employers
applying for temporary agricultural
labor certifications must individually
demonstrate their need for the
agricultural labor or services to be
performed is temporary or seasonal in
nature, regardless of occupation. The
Department believes this proposed
rescission of § 655.215(b)(2) is not only
consistent with the D.C. Circuit’s
decision in Hispanic Affairs Project and
the guidance issued by USCIS but also
better complies with the requirements of
the INA implemented in the
Departments’ regulations that define
when employment is of a ‘‘temporary or
seasonal nature.’’ 8 U.S.C.
1101(a)(15)(H)(ii)(A) (defining an H–2A
nonimmigrant as an alien coming to
perform services of a temporary or
seasonal nature); 20 CFR 655.103(d); 75
FR 6884, 6890 (adopting DHS’s
definition of ‘‘temporary or seasonal
nature’’ set forth in 8 CFR
214.2(h)(5)(iv)(A)).
3. Estimating the Number of Small
Entities Affected by the Rulemaking
The Department collected industry
data from the Bureau of Labor Statistics’
(BLS) Quarterly Census for Employment
and Wage (QCEW) for FY 2020. This
process allowed the Department to
identify the number of entities impacted
by this proposed rule for two North
American Industry Classification
System (NAICS) Codes that frequently
request H–2A certification for herding
and livestock production job
opportunities: NAICS 112410: Sheep
Farming, and NAICS 112111: Beef Cattle
Ranching, and Farming. The
Department was able to identify 9,329
establishments that are classified as part
of the beef cattle ranching, and farming
industry, and 233 Establishments that
are classified as part of the sheep
farming industry. Next, the Department
used the SBA size standards to classify
the vast majority of these employers
(approximately 99 percent) as small.
VerDate Sep<11>2014 16:33 May 05, 2021 Jkt 253001 PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 E:\FR\FM\06MYP1.SGM 06MYP1
khammond on DSKJM1Z7X2PROD with PROPOSALS
24376
Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Proposed Rules
4. Compliance Requirements of the
NPRM, Including Reporting and
Recordkeeping
The Department has estimated the
cost of the time to read and review the
proposed rule. In addition, the
Department assumes some employers
will experience increased costs
associated with changes in business
operations, transportation, staffing
turnover, and training requirements
under this proposed rule. The
Department seeks comment on how
employers might adjust their business
models to accommodate the reduction
in the permitted length of employment,
and what effect this might have on costs
of operations.
5. Calculating the Impact of the NPRM
on Small Entities
The Department estimates that small
businesses engaged in herding and
livestock production would incur a one-
time cost of $24.27 to familiarize
themselves with the changes proposed
by this rule. Other costs that employers
could incur are attributed to the
potential need to adjust their staffing
and business operations as well as
employing more U.S. workers to offset
the loss of H–2A workers. However, we
do not expect that these costs will be
significant, and we seek public
comments on this matter. The
Department reviewed the impacts of this
proposed rule for two North American
Industry Classification System (NAICS)
Codes that frequently request H–2A
certification for herding and livestock
production job opportunities: NAICS
112410: Sheep Farming, and NAICS
112111: Beef Cattle Ranching, and
Farming.
The Small Business Administration
estimates that revenue for a small
business with NAICS Code 112410 is
$1.0 million and for NAICS Code
112111 is $1.0 million. Although the
Department does not anticipate the
proposed rule will have a significant
adverse effect as employers must
already adjust to DHS’s guidelines, the
Department acknowledges that some
employers of sheep and goat herders
will need to replenish their labor supply
by hiring additional U.S. workers to
account for the reduced period of need,
or extending the work schedule for U.S.
workers that they employ.
6. Relevant Federal Rules Duplicating,
Overlapping, or Conflicting With the
NPRM
The Department is not aware of any
relevant Federal rules that conflict with
this NPRM.
7. Alternative to the NPRM
The RFA directs agencies to assess the
impacts that various regulatory
alternatives would have on small
entities and to consider ways to
minimize those impacts. As part of the
settlement agreement, ECF No. 136,
Hispanic Affairs Project, et al. v. Perez
et al., the Department agreed to engage
in rulemaking to propose to rescind
§ 655.215(b)(2). The Department invites
public comment on whether viable
alternatives exist that would reduce the
burden on small entities while
remaining consistent with statutory
requirements and the objectives of the
NPRM.
C. Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(PRA), 44 U.S.C. 3501 et seq., and its
attendant regulations, 5 CFR part 1320,
require the Department to consider the
agency’s need for its information
collections and their practical utility,
the impact of paperwork and other
information collection burdens imposed
on the public, and how to minimize
those burdens. This NPRM does not
require a collection of information
subject to approval by OMB under the
PRA, or affect any existing collections of
information.
D. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995 (UMRA) is intended, among
other things, to curb the practice of
imposing unfunded Federal mandates
on state, local, and tribal governments.
Title II of the UMRA requires each
Federal agency to prepare a written
statement assessing the effects of any
Federal mandate in a proposed or final
agency rule that may result in $100
million or more in expenditures
(adjusted annually for inflation) in any
1 year by state, local, and tribal
governments, in the aggregate, or by the
private sector. A Federal mandate is
defined in 2 U.S.C. 658, in part, as any
provision in a regulation that imposes
an enforceable duty upon state, local, or
tribal governments, or the private sector.
Following consideration of these factors,
the Department has concluded that, if
finalized as proposed, this proposed
rule would contain no unfunded
Federal mandates, including no
‘‘Federal intergovernmental mandate’’
or ‘‘Federal private sector mandate.’’
This NPRM, if finalized as proposed,
would not exceed the $100 million in
expenditures in any 1 year when
adjusted for inflation, and this
rulemaking does not contain such a
mandate. The requirements of Title II of
the UMRA, therefore, do not apply, and
the Department is not required to
prepare a statement under the UMRA.
E. Executive Order 13132, Federalism
The Department has concluded that
this NPRM, if finalized as proposed,
does not have federalism implications,
because it would not have substantial
direct effects on the states, on the
relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government. Accordingly, E.O.
13132 requires no further agency action
or analysis.
F. Executive Order 13175, Consultation
and Coordination With Indian Tribal
Governments
After consideration, the Department
has determined that this NPRM, if
finalized as proposed, would not result
in ‘‘tribal implications,’’ because it
would not have substantial direct effects
on one or more Indian tribes, on the
relationship between the Federal
Government and Indian tribes, or on the
distribution of power and
responsibilities between the Federal
Government and tribal governments.
Accordingly, E.O. 13175 would require
no further agency action or analysis.
List of Subjects in 20 CFR Part 655
Administrative practice and
procedure, Employment, Employment
and training, Enforcement, Foreign
workers, Forest and forest products,
Fraud, Health professions, Immigration,
Labor, Longshore and harbor work,
Migrant workers, Nonimmigrant
workers, Passports and visas, Penalties,
Reporting and recordkeeping
requirements, Unemployment, Wages,
Working conditions.
For the reasons set forth above, the
Department proposes to amend part 655
of title 20 of the Code of Federal
Regulations as follows:
PART 655—TEMPORARY
EMPLOYMENT OF FOREIGN
WORKERS IN THE UNITED STATES
1. The authority citation for part 655
continues to read as follows:
Authority: Section 655.0 issued under 8
U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i)
and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n), and
(t), 1184(c), (g), and (j), 1188, and 1288(c) and
(d); sec. 3(c)(1), Pub. L. 101–238, 103 Stat.
2099, 2102 (8 U.S.C. 1182 note); sec. 221(a),
Pub. L. 101–649, 104 Stat. 4978, 5027 (8
U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102–
232, 105 Stat. 1733, 1748 (8 U.S.C. 1101
note); sec. 323(c), Pub. L. 103–206, 107 Stat.
2428; sec. 412(e), Pub. L. 105–277, 112 Stat.
2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L.
VerDate Sep<11>2014 16:33 May 05, 2021 Jkt 253001 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 E:\FR\FM\06MYP1.SGM 06MYP1
khammond on DSKJM1Z7X2PROD with PROPOSALS
24377
Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Proposed Rules
106–95, 113 Stat. 1312, 1316 (8 U.S.C. 1182
note); 29 U.S.C. 49k; Pub. L. 107–296, 116
Stat. 2135, as amended; Pub. L. 109–423, 120
Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR
214.2(h)(6)(iii); and sec. 6, Pub. L. 115–218,
132 Stat. 1547 (48 U.S.C. 1806).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8
CFR 214.2(h).
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C.
1288(c) and (d); sec. 323(c), Pub. L. 103–206,
107 Stat. 2428; and 28 U.S.C. 2461 note, Pub.
L. 114–74 at section 701.
Subparts H and I issued under 8 U.S.C.
1101(a)(15)(H)(i)(b) and (b)(1), 1182(n) and
(t), and 1184(g) and (j); sec. 303(a)(8), Pub. L.
102–232, 105 Stat. 1733, 1748 (8 U.S.C. 1101
note); sec. 412(e), Pub. L. 105–277, 112 Stat.
2681; 8 CFR 214.2(h); and 28 U.S.C. 2461
note, Pub. L. 114–74 at section 701.
Subparts L and M issued under 8 U.S.C.
1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d),
Pub. L. 106–95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109–423, 120 Stat. 2900;
and 8 CFR 214.2(h).
§ 655.215 [Amended]
2. Amend § 655.215 by removing
paragraph (b)(2) and redesignating
paragraph (b)(3) as paragraph (b)(2).
Suzan G. LeVine,
Principal Deputy Assistant Secretary for
Employment and Training, Labor.
[FR Doc. 2021–09639 Filed 5–5–21; 8:45 am]
BILLING CODE 4510–FP–P
VerDate Sep<11>2014 16:33 May 05, 2021 Jkt 253001 PO 00000 Frm 00016 Fmt 4702 Sfmt 9990 E:\FR\FM\06MYP1.SGM 06MYP1
khammond on DSKJM1Z7X2PROD with PROPOSALS

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT